MISC 1978-37365

November 9, 1978

Barnstable, ss.

Randall, J.


Petitioner seeks to register title to approximately 10.35 acres of land in Bourne, Massachusetts as shown on the file plan. While petitioner claims he has good record title to locus, in the alternative he relies upon title by adverse possession. While the petition is now uncontested, the Court held a hearing and received evidence on the issue of adverse possession. All evidence is incorporated herein for the purpose of any appeal.

Based on all the evidence the Court finds as follows:

In 1946, soon after petitioner was discharged from the Navy, he purchased locus from Elizabeth Edna Boyden. At that time locus was basically overgrown pasture land with some swamp land and some wild fruit trees. It was bounded on three sides, at least in part, by stone walls. Petitioner bought some equipment, started clearing the land for farming purposes, and planted crops. He first cleared the central portion of locus and in 1948 planted blueberry bushes there. These bushes remain today. Fruit trees were planted in the 1950's. Petitioner has gradually cleared more land each year for farming purposes and has cultivated portions of locus continuously since the latter 1940's. He also maintained a road into locus.

From time to time petitioner has harvested wood from the property. He has also maintained bee hives on locus.

Locus has been posted with no trespassing signs since the early or middle 1950's. Exhibit No. 3.

Petitioner has paid taxes on locus since 1947. Exhibit No.5.

Based on all the evidence the Court concludes that petitioner's use of locus has been actual, open, exclusive, under a claim of right to the fee, and continuous from at least 1948 to the present. The fact that petitoner entered into possession under color of title by virtue of the deed from Elizabeth Edna Boyden dated May 13, 1946 establishes constructive possession of the entire tract even though petitioner's clearing, cultivation and other activities on locus, while covering substantial areas, did not extend to all portions during the entire prescriptive period. Nantucket v. Mitchell, 271 Mass. 62 , 68 (1930); Dow v. Dow, 243 Mass. 587 , 590 (1923). Hence, petitioner has established title by adverse possession to locus.

Petitioner is entitled to a decree of registration in conformance with this decision and subject to those matters disclosed by the examiner's abstract not here in issue.

Decree accordingly.